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In 1978, both chambers of Congress passed a constitutional amendment to give D.C. full voting rights, but only 16 of the necessary 38 states ratified it before the allotted time to do so expired. By contrast, the latest proposal would sidestep the need for an amendment and would operate like ordinary legislation by leaving intact a rump district that would be shrunken down to key federal buildings around the Capitol and White House while the rest of the city would be admitted as a new state.
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With every Republican opposed, passing D.C. statehood into law will require Democrats to curtail the filibuster in the Senate in addition to getting the remaining holdouts on board. However, Democratic victories in Georgia’s Senate runoffs earlier this month and the new majority that they ushered in means that D.C. statehood stands a realistic chance of finally passing into law.
Notably, no other contemporary democratic country disenfranchises its own capital, and Washington, D.C.’s population of almost 700,000 is already larger than both Vermont’s and Wyoming’s. Most critically, the U.S. Senate gives rural white voters vastly outsized political power relative to voters of color, so admitting Washington, D.C. with its predominantly Black population would help mitigate the chamber’s racial and anti-urban biases—and ensure greater justice for the District.
Redistricting and Reapportionment
● 2020 Census: On Wednesday, the Census Bureau revealed that the state-level population data from the 2020 census that is needed to determine how many congressional seats and Electoral College votes each state receives is not expected to be released until April 30, four months after the original deadline. This delay is the result of pandemic-related problems with census operations last year and Donald Trump’s unsuccessful attempt to manipulate census data for his own partisan ends.
The bureau also announced that the more granular population data needed for states to draw new districts won’t be released until at least July 30, which likewise represents a delay of at least four months from the original March 31 deadline. As a consequence, Americans will see major disruptions in the upcoming round of congressional and legislative redistricting.
New York University Law School’s Brennan Center for Justice released an in-depth report in 2020 looking at which states have deadlines that are in conflict with a delayed data release and what the impact of such a delay might be. The most directly affected states are New Jersey and Virginia, which are the only two states set to hold legislative elections in 2021 and would normally redraw all of their legislative districts this year.
New Jersey Democrats sidestepped the problem by passing a constitutional amendment in 2020 that postpones legislative redistricting until 2023 if the Census Bureau doesn’t provide the necessary data by Feb. 15, 2021, which is now virtually guaranteed. Republicans had initially said they’d sue to require redistricting this year, but with the release of census data delayed well past the February deadline, GOP leaders tell Politico that they’ve decided against such a lawsuit.
In Virginia, however, primary elections are currently planned for June 8, but if redistricting data isn’t released until August, it would be all but impossible for the state’s newly adopted bipartisan redistricting commission to draw new maps in time, even if officials delay the filing deadline and the primary. The current legislative districts drawn in 2011 will therefore likely remain in place for November’s elections.
The situation isn’t much better for several other states that have constitutionally mandated redistricting deadlines set to kick in this summer. Every state constitution lays out a lengthy process to amend such deadlines, making it impossible to change them at this point and increasing the likelihood of litigation over failures to meet key dates.
One major state in particular that could be thrown into turmoil is Illinois, whose constitution sets a deadline of June 30 for adopting new legislative districts following a census year. If legislators fail to pass a new map by then, they’d cede control to a bipartisan “backup commission” where the tiebreaking member is chosen in a 50-50 game of chance between the two parties. Democrats currently hold the legislature and had expected to exercise total control over redistricting, but if the process reverts to the backup commission, Republicans would have even odds of controlling legislative redistricting in this blue state.
There’s a further wrinkle, however, that hinges on just which year gets categorized as “the census year.” Normally, that would be a year ending in zero—i.e., 2020—but the Brennan Center suggests that, due to the delay, 2021 could instead be considered the census year, which would give lawmakers until June 30, 2022 to draw new districts (congressional redistricting does not use the same timeline or process as legislative redistricting). It’s unclear how such a determination might be made, making litigation a strong possibility.
Nearly every state has different procedures and timelines for congressional redistricting than they do for legislative redistricting, many of which are more forgiving, so the delayed release of census data should be less disruptive at the congressional level but could still have unforeseen impacts.
Voting Access Expansions
● District of Columbia: The Democratic Mayor Muriel Bowser has signed a bill into law that permanently adopts a measure temporarily implemented in 2020 that lets voters cast ballots at any “vote center” citywide in 2020 instead of just their local polling place. The new law also requires a polling place at the city jail.
● Louisiana: Louisiana’s GOP-dominated legislature has almost unanimously approved Republican Secretary of State Kyle Ardoin’s emergency voting plan that would slightly expand mail voting by allowing voters to cast absentee ballots if they are at higher risk for COVID-19, seeking a diagnosis for it, or are subject to a physician’s isolation order or caring for someone under isolation. Once Democratic Gov. John Bel Edwards signs off on the measure, the new rules would apply to upcoming local elections and the March 20 special elections for the 2nd and 5th Congressional Districts.
● New Jersey: The Democratic-run state Senate has almost unanimously passed a bill that would allow voters to request an absentee mail ballot online.
● Oregon: Democratic lawmakers in both legislative chambers have introduced a bill that would completely abolish felony voter disenfranchisement, which if passed would make Oregon just the fourth jurisdiction after Maine, Vermont, and Washington, D.C. to allow citizens incarcerated on felony charges to vote. Democrats enjoy unified control over state government, but the bill’s odds of passing are unclear. Under current law, voters with felony convictions are disenfranchised while imprisoned but have their rights automatically restored upon release.
● South Dakota: For the second year in a row, Republican lawmakers in South Dakota have blocked legislation from advancing that would have allowed online voter registration. Instead, legislators amended the bill to only allow voters with an existing registration to update their addresses online and passed the modified bill out of committee and onward to the full Senate floor. South Dakota is one of just nine states that requires voter registration but hasn’t implemented an online registration option for all voters.
● Virginia: State Senate Democrats have passed a bill along party lines that eliminates the requirement that absentee voters have a witness sign their ballot envelope, a requirement that only a handful of other states impose. Democratic senators also passed another bill in committee that permanently enables localities to set up ballot drop boxes at polling places and other locations. That bill further requires officials to notify absentee voters of any problems with their ballots and give them a chance to fix them.
Another bill that senators unanimously passed in committee requires local officials to take steps to process mail ballots before Election Day to ensure that they are counted in a timely manner on Election Day. Meanwhile, in the Democratic-run state House, legislators unanimously passed a bill that guarantees the right to curbside voting for voters with disabilities or injuries that would otherwise make it difficult for them to access the inside of a polling place.
Finally, state House Democrats have revised a constitutional amendment in subcommittee so that it would now abolish felony voter disenfranchisement for all citizens except those who are currently incarcerated after Democratic Gov. Ralph Northam expressed his support. Northam had initially only supported an amendment to codify the current system, which automatically restores voting rights upon completion of all terms of a sentence but is only in place via executive orders and still bans citizens from voting if they’re on parole or probation.
Virginia could therefore become the 19th state not to disenfranchise anyone who isn’t currently incarcerated if this amendment is adopted (two additional states and D.C. don’t disenfranchise anyone for a felony). Passing this amendment into law would require approval by legislators both before and after the state’s 2021 elections followed by a voter referendum in 2022.
Voter Suppression
● Georgia: Georgia Republicans have been considering a number of new voting restrictions targeting Democratic voters in reaction to Democratic victories in the 2020 election cycle, and one newly introduced bill would require that absentee voters submit voter ID not once but twice if they want to vote by mail. A trio of top Republicans—Gov. Brian Kemp, Lt. Gov. Geoff Duncan, and state House Speaker David Ralston—have all endorsed requiring voter ID for absentee voting.
Under the proposed bill, voters would have to include a photocopy of their ID both when they apply for an absentee ballot and when they return their ballot. This transparently pointless requirement would do nothing except make it harder for voters to cast mail ballots—a method now heavily preferred by Democrats.
Georgia Republicans passed one of the country’s first strict voter ID laws back in 2005 in Georgia’s first session under full GOP control over state government since Reconstruction, but Republicans exempted absentee voters from the requirement. Up until 2020, absentee voting was disproportionately used by elderly white voters who favored Republicans. GOP lawmakers are now trying to extend their voter ID law after 2020 saw absentee voting heavily favor Democrats thanks largely to Donald Trump’s attacks on mail voting.
● Mississippi: Republican state senators are considering a bill that would purge voters from the registration rolls if they don’t vote in four consecutive years or respond to a single notice form. The bill would result in infrequent voters who still remain eligible to vote being removed from the rolls simply for exercising their right not to vote.
There’s a strong risk that a single notification mailer could get overlooked by voters in today’s age of widespread junk mail, and voters who don’t realize they have been removed from the registration rolls would have no recourse if they show up on Election Day trying to vote. Mississippi not only lacks same-day voter registration but also imposes the maximum registration deadline length allowed under federal law, shutting off voter registration 30 days before Election Day.
The U.S. Supreme Court’s conservative majority upheld this voter suppression tactic in a 2018 case in Ohio, where state Republicans have been at the vanguard of aggressive voter purges nationwide. That ruling ignored the intent of the 1993 National Voter Registration Act (NVRA), commonly called the Motor Voter law, which bars eligible voters from being removed from the rolls simply for choosing not to vote. Using dubious logic, the court held that Republicans had only purged voters for failing to respond to the mailer rather than for not voting, paving the way for Republicans to adopt similar restrictions in other states.
● Montana: Montana’s newly elected Republican Secretary of State Christi Jacobsen has endorsed a bill under consideration by GOP lawmakers that would eliminate same-day voter registration. Calling it “very important legislation,” Jacobsen’s support may be a sign that Republicans are ready to pass this new restriction into law now that, for the first time in 16 years, they have unified control over state government.
● North Dakota: Republican legislators in North Dakota have introduced a spate of new restrictions on voting access and the ballot initiative process as their new session gets underway. One bill would require voters to be a resident of their jurisdiction for a year before Election Day to be able to vote, greatly lengthening the current requirement of 30 days, which is far more typical among other states. If enacted, this provision could disenfranchise college students, active-duty military service members, and even new residents who plan on remaining long-term.
Another measure cuts the number of early voting days from 15 to just seven. A further proposal would institute an excuse requirement for absentee voting while exempting voters age 65 and up, who typically lean more Republican than younger voters. Under current law, all voters are allowed to vote absentee without needing one of a limited set of excuses.
Other measures take aim at ballot initiatives. One constitutional amendment would require 60% support to pass new amendments at the ballot box instead of the current simple majority. Had this supermajority threshold been in place in 2018, a successful ballot initiative to create a state ethics commission would have instead failed to pass since it only won 54% voter approval.
Another amendment would limit voter-initiated amendments to only a single subject, thereby limiting the ability of a single measure to enact broad reforms. A separate statutory proposal would require that the full text of a proposed amendment be placed on the ballot instead of a concise summary. That could increase voter confusion and dramatically lengthen ballots, which could in turn lead to longer voting lines if voters take the time to read amendments in full—or cause voters to skip initiatives entirely when confronted with large blocks of text.
These proposals come as a reaction to reformers who established the ethics commission in 2018 and sought to ban gerrymandering in 2020, albeit unsuccessfully. While the ethics commission measure passed, North Dakota’s conservative-dominated state Supreme Court removed the redistricting measure from the ballot on the dubious grounds that the petition voters had signed to place the measure on the ballot was misleading.
These efforts are part of a national pattern in several states over the last decade that has seen Republicans move to restrict ballot initiatives in the wake of their successful use to expand voting rights, curb gerrymandering, and adopt other good-government reforms. The North Dakota GOP previously tried to restrict ballot initiatives last year with a constitutional amendment that would have required voter-approved initiatives to pass a second time if legislators rejected it, but voters rejected the GOP’s amendment last November.
● Wyoming: Wyoming Republicans have once again introduced a bill to require voter ID, and 2021 looks like it will finally be the year that they enact it. Republicans failed to advance similar proposals by a single vote in both 2020 and 2019 due to internal opposition, but last year’s elections saw right-wing hardliners oust several more mainstream conservative Republicans in primaries, while GOP gains in November left Democrats with their smallest minorities in over a century. Republicans comprising a majority in the state House and exactly half of the state Senate are already sponsoring the bill.
● Voter Suppression: The Brennan Center has published a report that rounds up more than 100 bills that have been introduced by Republicans in state legislatures across the country to restrict voting access so far this year. These bills mark a three-fold increase over the number of measures to restrict voting access that had been introduced around this time last year. The main thrust of these proposals is to limit access to mail voting, strengthen voter ID requirements, restrict voter registration, and allow more extensive purges of voter registration rolls.
Many of these bills won’t ultimately become law, but Republican lawmakers will inevitably enact some of these restrictions in response to Democratic victories last year. With Republicans holding an ironclad grip on many state governments, the best hope of blocking these restrictions from taking effect would be for congressional Democrats to pass legislation such as the For the People Act, which would ban a number of restrictive voting practices and adopt several measures expanding voting access.
Electoral College
● Arizona: Republican Rep. Shawnna Bolick, who chairs the state House Ways and Means Committee, has introduced a bill that would effectively let Arizona’s GOP-run legislature do away with democracy by granting lawmakers the power to reject the certification of presidential election results by the secretary of state, a post currently held by Democrat Katie Hobbs. That would pave the way to instead allow legislators to determine the winner of Arizona’s Electoral College votes by fiat.
Additionally, the bill would require jury trials if an election result is contested and would even bar judges from dismissing frivolous cases like the dozens of lawsuits that the Trump campaign filed and lost nationwide in his effort to overturn his defeat.
It’s unclear if this bill stands any shot at passing, since Republicans would need total unanimity to advance it in the legislature. Notably, state House Speaker Rusty Bowers rejected Trump’s wish that legislators appoint their own pro-Trump electors last year. However, if the bill does somehow become law, Democratic Rep. Ruben Gallego vowed to organize a veto referendum to repeal it at the ballot box, and Democratic election lawyer Marc Elias strongly suggested that litigation would be a certainty.
● Virginia: This week, Democratic state Sen. Adam Ebbin withdrew a bill to add Virginia’s 13 Electoral College votes to the National Popular Vote Interstate Compact after Senate Democrats realized they did not have enough votes to pass the bill either in committee or on the full floor. Senate Democrats hold a narrow 21-19 majority over Republicans, who uniformly oppose the measure.
Democrats won full control of Virginia state government in 2019, but even though they passed a bill to join the compact in the state House last year, the Senate has now failed to advance the bill for the second year running. The situation appears unlikely to change unless supporters defeat some of the bill’s opponents in 2023, when terms for senators are next up.
Had Virginia joined the compact, it would have exceeded the 200-vote threshold for the first time and attained 209 of the 270 electoral votes needed to take effect, but instead the compact only has 196 electoral votes. Virginia is the third state controlled by Democrats that has failed to pass a bill joining the compact thanks to internal opposition, following a veto by Nevada’s governor and Maine legislators narrowly rejecting their own bill in 2019.
Aside from these three states, there are no states left that have a unified Democratic state government and have not yet joined the compact. Supporters may therefore have to wait until after future elections bring new lawmakers to power before they stand a chance at successfully adding any new members to the compact.
Before last November, it appeared possible for the compact to take effect by 2024 if Democrats did well enough in the 2020 and 2022 elections. However, Republican victories in key legislative chambers last year dashed those hopes, while the coming midterms are likely to be unkind to Democrats, since the party that controls the presidency typically suffers in midterm elections and Republicans are poised to dominate redistricting thanks to their recent wins.
It could therefore be many years before the compact could realistically win enough support to take effect barring an unexpected reversal of opposition by Republicans. That, however, appears exceedingly unlikely so long as Republicans continue to believe that the Electoral College gives them a partisan advantage.
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